The strange story of the trial of a Canadian aboriginal

 

Grassy Narrows Indian Reservation is a small community in the First Nation Territory of which has on average, 950 Ojibway Indian natives living in the community.  It is highly possible that some of the elderly people in that community were residents of the Cecilia Jeffrey Ojibway Indian Residential School in Kenora, in the northwestern part of Ontario when I was the senior supervisor at that school in 1959. The community is an hour’s drive (90 km) north of Kenora. The community has no hotel or restaurant however it has a small general store but most of the time, the residents drive to Kenora for their groceries. There's only one fishing camp midway, otherwise the community is completely surrounded by wilderness.

 

Near the end of April 2007, there had been serial episodes of binge drinking among some of the members of Grassy Narrows, interspersed over two days.  The binge drinking involved groups of people at different residences, replenishment of the supply of alcohol from time to time and the transportation  of alcohol from one  ‘party residence’ to another.    

 

Both Clifford Kokopenace and Taylor Assin, the victim that Kokopenace stabbed to death participated in the drinking, but not always in the company of the other.  Many trial witnesses had also been ‘party-goers’.  They had ingested intoxicants in varying degrees, some for prolonged periods of time.    

 

Taylor Assin was fatally wounded during a fight between him and Kokopenace in the house of Ian Pelly on April 28, 2007. Someone introduced a knife into the tussle between them which began as an argument, then escalated into pushing and shoving, and then into a fist fight and then the fatal stabbing.

 

Assin’s death was caused by a single stab wound that entered his body in the left chest between the first rib and the collarbone, then penetrated upward, inward and backward into the neck area where it perforated the subclavian artery and jugular vein.  Both the subclavian artery and the jugular vein are significant blood vessels that feed blood to the brain. Their perforation caused massive bleeding.  Assin bled to death as a direct result of this single stab wound.

                   

Accident and self-defence were the issues at trial.  The crown (prosecutor) bore the burden of negativing each of these ‘defences’ on proof beyond a reasonable doubt.  It is plain from its verdict that the jury was satisfied beyond a reasonable doubt that neither accident nor self-defence had application in that case.

Kokopenace chose to testify at trial.  It is similarly apparent from the jury’s verdict that the jury rejected his testimony on all essential points save, perhaps, intoxication.  In short, the jury concluded that Kokopenace introduced the knife into the fight and that he caused Taylor Assin’s death by stabbing him, not by accident and not in circumstances justified under the law of self-defence.                   

There are two different conclusions by which the jury, having concluded that Kokopenace introduced the knife into the fight, could have reached its verdict of manslaughter. Because juries in Canada do not give reasons for their verdicts, it is not always possible to infer their basis for verdict. In this particular case, the jury may well have concluded that, owing to Kokopenace’s extensive consumption of alcohol, he had not formed the intent necessary for second degree murder. The second possibility rests upon a potential finding of provocation.                               

For the jury to have found provocation as a basis for reducing the charge of murder to one of manslaughter, the jury would necessarily have to have found that Kokopenace had formed the intent necessary for second degree murder and that he was provoked into a loss of control because of a wrongful act or insult directed at him. There was evidence at trial that Assin had initiated the pushing and shoving.  Indeed there was also reference to one or both of them having said some disparaging things about Indian gangs or a particular gang.

Second degree murder in Canada is defined as the killing of a human being other than first degree murder where premeditation is the prime reason for the crime of murder in the first degree.  In other words, if you do not plan and you do not deliberate about it but you still intend to kill someone, that is second degree murder. The sentencing ranges from life in jail with no parole for 10 years to 25 years until you are eligible for parole. If there are mitigating factors the jury can recommend the minimum which is ten years imprisonment.

 

Manslaughter is broadly defined as the unlawful killing of another human being.  Circumstances surrounding the killing of a human being can vary greatly from case to case.  The degree of moral blameworthiness may be very great in some instances and relatively small in others. If somebody is committing an illegal act and causes the death of an individual then they can be found guilty of manslaughter. Though the person died, there was no intention to cause death. Perhaps, there was only an intention to hurt someone but if a person dies because of that criminal act, the charge is manslaughter. The sentencing options for manslaughter are very complicated because there is no minimum. In Canada, you can get anything from probation (which is unlikely) to a minimum of 25 years in prison. Often individuals found guilty of manslaughter in Canada will serve medium range penitentiary terms, which is generally between 7 to 15 years.

The Supreme Court of Canada laid out guidelines as to special concerns judges should explore and consider when sentencing Aboriginal offenders: The court said in part:                                                                                                                                                                                                                                                                     

“As with all sentencing decisions, the sentencing of Aboriginal offenders must proceed on an individual (or case-by-case) basis: for this offence, committed by an offender, harming this victim, in this community, what is the appropriate sanction under the Criminal Code? What understanding of criminal sanctions is held by the community? What is the nature of the relationship between the offender and his or her community? What combination of systemic or background factors contributed to this particular offender coming before the courts for this particular offence?  How is the offender who is being sentenced being affected by, for example, substance abuse in the community, or poverty, or overt racism, or family or community breakdown? Would imprisonment effectively serve to deter or denounce crime in a sense that would be significant to the offender or the community, or are crime prevention and other goals better achieved through healing? What sentencing options present themselves in these circumstances?”  unquote

                                                                                                                                                                                                                         

 In my respectful opinion, the Supreme Court was correct in concluding that the background of an aboriginal offender with respect to his upbringing, whether or not he lived in poverty or among people who suffered from substance abuse or suffered from overt racism or the lack of a good education should have some bearing on the sentence he receives. I should add however that such consideration should also be given to non-Aboriginal defendants if they too suffered from those impediments during their childhoods.

Notwithstanding what may well be different approaches to sentencing between Aboriginal and non-Aboriginal conceptions of sentencing, it is reasonable to assume that for some Aboriginal offenders (depending upon the nature of the offence) the goals of denunciation and deterrence are fundamentally relevant to the offender’s community. The more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between Aboriginal and non-Aboriginal offenders, given that under these circumstances, the goals of denunciation and general and specific deterrence are accorded increasing significance.

Kokopenace has not accepted responsibility for the death of his victim.  His refusal to do so has given rise to a sense of lingering concern among many in the community.  Indeed, some direct evidence at trial even suggested that Kokopenace could be at risk for an act of revenge if he were to return to the community.                                                                                                                                                                                                                                            

On  June 17, 2008, the jury had found Kokopenace guilty of a violent and serious criminal offence. Where in a fistfight, a knife is drawn and used for purpose other than lawful self-defence, the acts of drawing and using the knife show a reckless disregard for the safety of others.  Where those acts result in the death of another person, they fall beyond the mid-point in the ‘near-murder to near-accident’ spectrum even where the intent to cause bodily harm is absent.                                                                                                      

The judge felt that he message that needed to be sent to the community and to this offender was that, absent lawful justification, resort to a weapon carries with it serious penal consequence.  The penal consequence that flows from the use of a weapon necessarily increases proportionally with the degree of risk to human health and life and the harm caused from its use.  

The  criminal record of Kokopenace as a young offender was extensive. It has been noted during these reasons only as a means of outlining his personal background and circumstances. Apart from their importance for that purpose, his juvenile record could not be considered to his prejudice at this sentencing hearing. The same is not true of the criminal record of Kokopenace when he was an adult.     

Kokopenace has a very extensive and disturbing criminal record as an adult. In the 6 years since 2002, he had no fewer than 12 convictions for violent assaults. Three of those convictions involved assault causing bodily harm. Four involved assaulting a police officer on duty. One was for aggravated assault. Four of these convictions for violent assault were recorded in 2007  alone.

                                                                                                                                                                                                                          In the psycho-education summary prepared, Kokopenace acknowledged that he got angry when he drank; that when drunk, he was much less able to control his anger and was then capable of hurting anyone. Kokopenace also conceded that he was also drunk at the time that he committed no fewer than 12 violent offences for which he already stood convicted. In short, Kokopenace was personally well aware from his own experience, and from what his friends told him, of his propensity towards violence, especially when drinking. In light of that personal knowledge, the question in the judge’s mind was, should he then be able to rely on intoxication as a mitigating factor at his sentencing hearing?  

                                                                                                                                                                                              

By starting the fight, Assin bore some moral responsibility for what occurred.  The scenario changed radically, however, and with lethal consequences when Kokopenace introduced the knife and, by his ensuing use of that weapon, caused Assin’s death.  Introducing a dangerous weapon into a fight without lawful justification is an aggravating factor, particularly where it is the instrument of death.  The fact that Kokopenace was also on probation for a violent offence at the time of this killing was an additional aggravating factor on his part.

 The trial judge said after Kokopenence was convicted;  

 “Because he does not accept responsibility for his lethal conduct he cannot and does not express remorse.  I am persuaded that Clifford Kokopenace poses a serious risk to public safety at large whether he be in an aboriginal or non-aboriginal public environment.  Clifford Kokopenace’s criminal record for the last six years speaks volumes as to the extent of risk he presents to the community, now and in the future, unless he accepts and successfully completes extensive therapeutic treatment and a healing process. The circumstances also persuade me that that both denunciation and deterrence of the serious criminal conduct witnessed here must figure prominently in this sentencing process.  I am therefore persuaded that Clifford Kokopenace’s separation from society by means of a significant period of incarceration is not only unavoidable but mandated.  Given the seriousness of this offence and its consequences in his home community I am equally persuaded that this community is accepting of the need for separation.” unquote.

                                                                                                                                                                                                                                    

I don’t take issue with the judge’s sentence.  If the victim hadn’t started the fight in the first place, Kokopenace would have killed him with the knife. If Kokopenace had started the fight and killed Assin, I believe he would have received a much more severe sentence.  The killing of a human being is definitely a wrong against society, not to mention the victim and the victim’s family and friends but there are certain circumstances that a judge must consider when determining the sentence of the person who is convicted of killing another person. If Kokopenace didn’t have such a horrendous criminal record of violence, I believe that his sentence would have been much less. I remember a case where a man stomped another man to death but because the victim started the fight and because the man who killed him had never been in trouble before that incident, he was convicted of manslaughter and received only two years less a day in prison; 

 The judge sentenced Kokopenace to seven and a half years in prison. However, this story doesn’t end here. No, here comes the strange part of this story.                                                                                                                                                                                                                                                                   

The jury selection process in Ontario takes place in three stages. The first stage is the preparation of the jury roll of individuals selected from the community who are able to serve as jurors. The second stage is the selection of names from the jury roll to make up the jury panels for particular court sittings. The third stage is the selection from the jury panel for a particular criminal jury trial.                                                                                           

His lawyer appealed to the Ontario Court of Appeal for a new trial on the grounds that Kokopenac didn’t get a fair trial because the trial judge didn’t permit the jury to be picked from a slate of residents from the Indian reservation where he and the victim lived.

                                                                                                                                                                                        Let me say right from the start that I see an initial problem that argument for a new trial for Kokopenace. Many criminals are tried in other locales, some far from communities where they lived.  One of the reasons for this is that the judges feel that if the person charged with murder is tried in his own community, it would be hard to find an unpredudicial jury.

                                                                                                        

However, the Provincial Act says that in the selecting of persons for entry in the jury roll in a county or district in which an Indian reserve is situated, the sheriff shall select names of eligible persons inhabiting the reserve in the same manner as if the reserve were a municipality and, for that purpose, the sheriff may obtain the names of inhabitants of the reserve from any record available.                                                                                                                                                                                                                      

 

This means that potential jurors in an Indian reservation are eligible to serve as jurors but you will note the word, may is used instead of the word shall which means that the sheriff appears to have an option of choosing from where the potential jurors live. Since the community where both Kokopenace and his victim lived is a small community of only 950 persons of which many of them are children, did the sheriff presume that the adults in the community for the most part might be prejudicial in their deliberations?  If he did, he was wrong. That is because it is up to the defendant’s lawyer and the prosecutor to decide whether or not they have a problem of using residents of the community where the crime took place as jurors at the defendant’s trial and not that of the sheriff. I am not however saying that in this case, the sheriff made that decision. 

                                                                                                                                                               

 

While they were not excluded from the jury roll, the question is whether the Province of Ontario did enough to include them in order to meet the representativeness requirement created by ss. 11(d) and (f) of the Charter of Rights and Freedoms. 

 

                                                                                                                                                                                                                 

The provisions engaged by this issue are ss. 11(d) and (f) of the Charter. They read as follows:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

 

 

 

The issue before the Court of Appeal was whether or not Kokopenace had been given the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. And to narrow the issue down even further; was his trial conducted by an independent and impartial tribunal and more importantly, could it have been an impartial trial without him being tried by a panel of jurors by some who were not from his own aboriginal community?

                                                                                                                                                                                                                                                          Provincial legislation guarantees representativeness, at least in the initial selection. The random selection process, coupled with the sources from which this selection is made, ensures the representativeness of Canadian criminal juries. In other words, the legislation insists that even if a crime is committed in a small community like Grassy Narrows, the sheriff has the legal obligation to include adult citizens of that small community as part of the initial jury selection. It is then up to both the defendant’s lawyer and the prosecutor to decide if any those picked at random will make an unbiased decision as to the guilt or innocence of the defendant. The Charter right to a representative jury roll serves several important objectives. First, it is a means of ensuring that any criminal jury derived from that jury roll is an impartial decision maker. The representative character it brings to the jury composition process allows the jury to act ‘as the conscience of the community’ even if it is an Aboriginal community.  Second, it serves to build public knowledge of and trust in the criminal justice system. These are the objectives of impartiality and enhanced public confidence.  Justice Rosenberg in the Scientology appeal said in part;                                                                                                                                                              

The justification for the representative nature of the jury is not simply to assure that the case is tried by an impartial tribunal.  The representative character of the jury also furthers important societal or community interests by instilling confidence in the criminal justice system and acting as a check against oppression.  The accused and the community have an interest in maintaining the representative character of the jury system. unquote

Justice Rosenberg said;                                                                                                                                                                                                                

The right to a representative jury roll is not absolute in the sense that the accused is entitled to a roll representative of all of the many groups that make up Canadian society. This level of representativeness would be impossible to obtain.  There are a number of practical barriers inherent in [making] the selection process that makes complete representativeness impossible.  The roll is selected from a discrete geographical district which itself may or may not be representative of the broader Canadian society. unquote  

                                                                                                                                                                                                                                                       

In other words, even though the broader society in Ontario is non-Aboriginal, this doesn’t mean that Aboriginals can be excluded from the jury pool even if they live in a small Aboriginal community where the crime took place. 

                                                                                                                                                                                                                                   

The Court of Appeal hearing Kokopenace’s appeal had the view that the critical characteristic of impartiality in the criminal jury is ensured, in part, by the fact that the roll and the panel are produced through a random selection process. To require the sheriff to pick and choose a fully representative roll or panel would run counter to the random selection process. The sheriff could not add potential jurors to the roll or panel based upon his own perceived characteristics required for representativeness. The selection process would become much more intrusive especially since the sheriff in order to carry out the task of selecting a representative roll would require information from potential jurors as to their race, religion, country of origin and other characteristics considered essential to achieve representativeness. The point of this is not to demonstrate that a jury panel or roll cannot or should not be representative, but that the right to a representative panel or roll is an inherently qualified one. There cannot be an absolute right to choose a representative panel or jury pool based on race, religion, country of origin or any other characteristic of any potential juror. 

                                                                                                                                                                                                                                                         The right to a representative jury roll is thus not an absolute right, but an inherently qualified one. The right does however require the state to use a jury roll process that provides a platform for the selection of a criminal jury that serves the objectives of impartiality and enhancing public confidence in the criminal justice system. Essential to achieving these objectives is that the distinctive perspectives that make up the community are provided a fair opportunity to be included in the jury roll, and to be brought to the jury function. In this way the jury can serve as the conscience of the community as the representativeness guarantee requires.

Kokopenace’s lawyer had proposed a three-part test to answer the question as to whether or not his client had received a fair trial. First, a group of potential jurors in any criminal case that is alleged to be excluded from the jury roll, or underrepresented on it, must be distinctive in a sense that reflects the purposes of the guarantee. Second, the representation of the group on the jury roll must be shown not to be fair and reasonable compared to the group’s representation in the community served by the jury roll. Third, this underrepresentation must be due to or exacerbated by factors for which the process used by the state properly bears responsibility. 

 Justice Rosenberg said in the in the Scientology appeal; 

                                                                                                                                                      “There is no characteristic that persons bring to the fact-finding process of the jury based solely on their immigration status. Canadian citizens are of all races, nationalities, ethnic origin, colour, religion, sex, age and ability.  Immigration status is simply not a relevant characteristic when regard is had to the rationale underlying the right to a representative pool. A jury pool selected from Canadian citizens represents the larger community for the purposes of trial by jury.”unquote                                                                                                                                                                

This clearly means that Aboriginals, even if they live in a small community where the crime took place, cannot be excluded from the jury pool. In this case involving Kokopenace, there can be no doubt about the importance of the Aboriginal on-reserve potential jurors. Aboriginal on-reserve residents constitute a significant portion of the population in the Kenora District, and although all Aboriginal on-reserve residents would not necessarily approach their task in the same way, their race, their shared heritage and their on-reserve life experiences bring important and distinctive perspectives to their jury service. As the Scientology case tells us, to be Charter-compliant, the state’s process for preparing the jury roll must bring to the criminal jury function the possibility of the inclusion of these distinctive potentials. 

                                                                                                                                                                                                                     The Court of Appeal in the Kokopenace appeal ruled that he was to have another trial. I don’t know what the verdict will be but in my opinion, I believe that this man will still be convicted of manslaughter and in all likelihood, he will also be given the same sentence as before.